H5 and Clearwell Systems are giving a webinar on 19 March about TREC Legal Track’s practical application in evaluating and assessing search and review methods. Why should we in the UK pay attention?
There is a danger in talking to UK audiences about the higher end of US thinking on information retrieval as it applies to litigation. That word “discovery” (which we abandoned ten years ago for no obvious – or, at least, for no good – reason) serves as a flag which says to UK litigators that it is about someone else’s problem. Other assumptions follow – that the output of such thinking will be academic rather than relevant to everyday life, the volumes will be beyond imagining, the language will be impenetrable and so on.
Certainly, there are some more basic problems for UK practitioners. What is this Practice Direction to Part 31 which the judge in Digicel (St Lucia) v Cable & Wireless banged on about? Oh, I see, they say: big case, foreign business, two counsel on each side instructed by major firms – nothing to do with me then. Now, tell me how I get all these e-mails printed quickly so I can start reading them?
Nevertheless, it is no bad thing to make yourself aware of the thinking in US circles. It is not that we will be in two years where they are now, but that if we watch what they do, we may avoid altogether the worst excesses of US electronic discovery.
It is wrong anyway to assume that the serious thinking is applicable only to very big cases. They may drive the technology and the methods but those scale down well and, to some extent (not entirely), run in cost terms in proportion to the volumes. The UK rules refer in terms to keyword searches, with a cautious reference to the possibility that “There may be other forms of electronic search that may be appropriate in particular circumstances” (the Practice Direction to Part 31 CPR paragraph 2A.5 if this is news to you).
There are indeed “other forms of electronic search”. Many of them were not fully developed in 2005, when the Practice Direction came into effect but are now mainstream technology, their development driven as much as anything by US litigation. With them has come much debate about the relative efficacy of different approaches to search. Many of us (including me) are moving towards acceptance that, however quickly search technology catches up with the volumes, we need to consider how practical it is to try and find “everything” and that justice can be achieved by a lower – and therefore cheaper and more attainable – target.
The US National Institute of Standards and Technology’s Text REtrieval Conference (TREC) Legal Track exists to consider these things. TREC deserves more detailed consideration than I can give now, but you may like to get a fast track into it by taking part in a webinar on Thursday 19 March at 1-2 pm EDT (which I make to be 5-6pm GMT). The speakers include Doug Oard of the University of Maryland and Jason Baron, Director of Litigation at the National Archives and Records Administration.
The H5 website links to a selection of educational and/or informative materials, including an article on Ralph Losey’s site about Jason Baron’s current work on search to which I refer you as a substitute for writing about it myself. I had a meeting with H5 CEO Nicholas Economou in New York in February, our conversation reinforcing my view (in which I am not alone) that H5 houses some of the best thinking on the supplier side of the e-discovery world. This is perhaps not surprising – although very much a technology company, H5 practices better than most something I often say to the effect that the best technology lies between your ears.
Clearwell Systems also knows the value of wider education as a marketing tool – if that sounds cynical it is not meant to be. Having just read yet another US case (I will come back to it separately) in which a party was sanctioned for its conduct of discovery, it is not clear who contributes most to the decline of litigation as a commercial activity – ignorant dabblers, non-cooperating tacticians or those who just press the print button. Clearwell is good at explanations.
Webinars are a painless way to absorb current thinking. TREC Legal Track usually has thought-provoking stuff to hand out. If the 200 million e-mails which Jason Baron has just received from the outgoing Bush Administration put his search and retrieval problems in a league rather different from yours, you can at least be sure that he will have applied his mind to dealing with them, and that what he says will have wider application than NARA’s own archiving problems.